1.1 In this Agreement, the following expressions shall bear the following meanings and related expressions bear corresponding meanings:-
1.1.1 “the agreement” means the agreement and Dealer application set out in this document, together with all amendments signed by the Company, which shall include but is not limited to the Credit Approval letter which may be issued to the Customer at the sole discretion of Midnight Star Trading 730 CC, trading as Potshot Archery and any special conditions attached to the Customer's Quotation;
1.1.2 “the Company” means Midnight Star Trading 730 CC, trading as Potshot Archery, a Close Corporation duly registered and incorporated in accordance to the provisions of the Company laws of the Republic of South Africa under registration number 2008/128572/23;
1.1.3 “confidential information” means any information or data which by its nature or content is identifiable as confidential, and/or proprietary to either Party, and/or any third party (including without limitation any end-user) and which is disclosed in confidence by the disclosing party to the receiving party for the purpose of this Agreement;
1.1.4 “customer” means the person and the legal entity whose name appears on the Customer Application and Personal Surety document, and whom shall be authorized to sign on behalf of the legal entity;
1.1.5 “effective date” shall mean the date on which the Company informs the Customer if the application is successful;
1.1.6 “credit approval” means the granting of credit to the Customer at the sole discretion of the Company, and on the terms stated on the Credit Approval Letter, which shall be deemed to be subject to the terms of this Agreement;
1.1.7 “order” means the Quotation, which on acceptance will be deemed the Customer's Order;
1.1.8 “product” means the products available from the Company, for which the Company will provide the Customer with a Quotation for acceptance. On acceptance the delivery of the Products or Services will be subject to the terms of this Agreement;
1.1.9 “prime rate” means the interest rate (expressed as a percentage (%) per annum, compounded monthly) from time to time published by the Company’s bankers from time to time, as being its minimum overdraft rate at which it lends to its most valued customers in the corporate sector, as certified by any bank manager of such bank, whose appointment or authority it shall not be necessary to prove, and whose certificate shall, save for manifest error of calculation, be prima facie proof of the contents thereof;
1.1.10 “quotation” means an offer by the Company to supply the Products or Services to the Customer in accordance with the provisions of this Agreement;
1.1.11 “VAT” means value added tax in terms of the Value Added Tax Act 89 of 1991 or any similar tax on the supply of Products.
2.1 The Customer has submitted an application to the Company for approval as a Dealer of the Company Products.
2.2 The Company shall in its sole discretion evaluate the application, and if successful, the Customer will receive notification thereof.
2.3 If the Customer is approved by the Company, the Customer shall be entitled to buy Products from the Company, for resale to the public.
3.1 All Quotations will remain valid for a period of 1 (one) day from the date of Quotation or until the date of issue of a new the Company price list, whichever occurs first.
3.2 All Quotations are subject to the availability of Products and the prices quoted are subject to any increase in the cost price, including currency fluctuations affecting the Company before dispatch of the Products.
3.3 If required by the Customer, such increase in the price will be certified by an independent auditor, appointed by the Company, and for the account of the Customer. Such certificate shall be final and binding on the Customer.
4.1 The Customer waives the requirement to receive written notice of acceptance by the Company of any order placed by the Customer. A binding contract shall arise when the Customer informs the Company of acceptance of the Quotation. Acceptance shall be deemed to take place at the physical address of the Company situated at 74 Wakis Avenue, Strijdompark, Randburg, Gauteng and will be subject to the provisions of clause 4.2 below.
4.2 On acceptance of the Quotation, the Customer order on the Company shall be subject to this Agreement. It is specifically recorded that any terms and conditions accompanying the Customer's order, not agreed to in writing by an authorized representative of the Company, shall be null and void, and of no force and effect
4.3 No variations to the orders will be binding on the Company until the Company has accepted the variation, and sent a revised written Quotation to the Customer.
4.4 The Customer shall pay all additional costs incurred as a result of any act or omission on the part of the Customer.
5. PURCHASE PRICE AND PAYMENT TERMS
5.1 The Customer shall pay the amount on the Order at the offices of the Company prior to delivery as follows:
5.1.1 by way of direct deposit of cash or internet banking into the Company bank account. Bank account details are available on request from the Company. The original bank deposit slip or a screen print of the transaction clearly showing the beneficiary number must be presented on collection of the Order; or
5.1.2 if the Customer is a Credit Approved Customer, payment must be after the Company issues a tax invoice and in accordance with the provisions of the last dated Credit Approval Letter issued to the Customer by the Company.
5.2 All payments in terms of or arising out of this Agreement, will be made in accordance with the provisions of clause 5.1 above, in South African Rands, free of conditions, set-off, bank exchange, commission or any other deduction.
5.3 The Customer agrees that no extension of payment terms of any nature will be extended to the Customer. Extension of payment terms will only be enforceable if agreed to in writing by a duly authorised representative of the Company.
5.4 All discounts will be forfeited if payment is not made in full by the due date.
5.5 The Company shall be entitled to invoice separately each delivery or performance.
5.6 The Customer agrees that interest shall be payable on any monies due to the Company at the maximum legal interest rate permitted in law (and if no maximum amount is permitted in law, at a rate of 10% (ten percent) above the Prime Rate), compounded and calculated from the date it falls due.
6. DELIVERY AND PERFORMANCE
6.1 The Company shall be entitled in its sole discretion to split the delivery or performance of the Products and/or Services ordered in the quantities and on the dates it decides.
6.2 Times given for the delivery of Products or performance of Services are merely estimates and are not binding on the Company.
6.3 Delivery of the Products to the Customer shall take place at the place of business of the Company, on proof of payment by the Customer.
6.4 If the Company agrees to engage a third party to transport the Products, the Company shall do this on behalf of the Customer and is hereby authorized to engage a third party as the authorized agent of the Customer and for the Customer's account.
6.5 Risk in the Products shall pass to the Customer on delivery of the Products by the Company to the Customer, or its authorized agent. The Customer hereby irrevocably authorizes and ratifies any reasonable decisions made by the Company on its behalf with regard to such third party mode of transportation.
6.6 The Customer indemnifies the Company against any claims of whatsoever nature that may arise against the Company from the agreement referred to in 6.4 and 6.5 above.
6.7 Any delivery note (copy or original) signed by the Customer or its authorized agent or its employee shall be conclusive proof that delivery was made to the Customer.
6.8 The Customer confirms that its signature or that of its employee, of the delivery note, constitutes prima facie proof that the Products and Services delivered comply with the Order.
7. WARRANTIES AND RETURNS
7.1 The Customer warrants that:-
7.1.1 the Products are procured for resale, and not for personal use;
7.1.2 the authorised representative is duly authorized to sign this Agreement on behalf of the Company;
7.1.3 the information provided in the Dealer Application and Personal Surety are true and correct to the best of the signatory’s knowledge;
7.1.4 that no representations were made by the Company in regard to the suitability of the Products or any of its qualities other than those contained herein;
7.1.5 neither the Company nor any of its employees, agents or suppliers will be liable for negligent or innocent misrepresentations made to the Customer;
7.1.6 it is the sole responsibility of the Customer to determine that the Products ordered are suitable for the purposes of intended use.
7.2 No warranties, guarantees or representations, express, implied or tacit, whether by law, contract or otherwise unless specifically recorded in this Agreement are binding on the Company, and the Customer waives any rights (common law or otherwise) that it may rely on.
7.3 New Products carry the warranty in accordance with the manufacturer's product specific warranty.
7.4 In the event of the Consumer Protection Act 68 of 2008, as amended, is not applicable to this agreement, then:-
7.4.1 The Company's liability is limited to the cost of repair or replacement of faulty Products, or granting of a credit to the value of such Products or Services at the sole discretion of the Company.
7.4.2 The Customer will have no claim under this Agreement unless the Company has received notification of the alleged defect by hand or prepaid registered post within 10 (ten) days of the alleged breach or default occurring. The Company will have 30 (thirty) days from receipt of the notice to respond thereto.
7.4.3 All claims must be supported by the original tax invoice issued by the Company.
7.4.4 The warranty will not be valid, unless the Customer returns any defective Product to the Company packed in the original packaging. All costs incurred in effecting the return will be for the Customer's account.
7.4.5 The Company reserves the right to levy a handling fee of 10% (ten percent) of the purchase price reflected on the tax invoice of those Products returned to the Company.
7.4.6 All warranties are immediately null and void should any equipment be tampered with or should the seals on Products be broken by anyone other than the Company, or in the event that the Products were used outside of the manufacturer's specifications
8.1 Ownership of the Products will pass to the Customer on payment of the purchase price. The provisions hereof shall apply notwithstanding that the Products may have been incorporated into or form part of the Customer's itinerary of products.
8.3 The Customer is not entitled to sell or dispose of any unpaid Products without the prior written consent of the Company.
8.4 The Customer shall take all steps deemed necessary to notify interested third parties that ownership of the relevant Products has not passed from the Company to the Customer. In particular, the Customer shall inform the owner or landlord of his premises that the Products are not subject to the landlord's hypothec.
9. FORCE MAJEURE AND LIMITATION OF LIABILITY
9.1 The Customer shall not have a claim against the Company for any delay or failure of the Company to carry out any of its obligations under this Agreement arising from or attributable to acts of God, war, terrorism, government, labour action or unrest, failure of suppliers or contractors or any other cause whatsoever beyond the control of the Company. (force majeure)
9.2 The performance of the obligations of the Company shall, subject to 9.3 below be suspended for the duration of the force majeure, which shall be deemed to commence only upon the date of written notice by the Company to the Customer. Upon cessation of the force majeure, this Agreement shall again become fully operative and the Company shall immediately resume performance.
9.3 Any claim by the Customer against the Company, howsoever arising shall in the aggregate be limited to the amount reflected on the tax invoice in respect of which the claim relates. In any event, the Company will not be liable to the Customer for: (a) indirect or special damages and/or (b) loss of income or profit, howsoever arising whether or not caused by its employees, agents and/;or contractors, and regardless of form or cause of action. The provisions of this clause are also stipulated for the benefit of the employees, agents and /or contractors of the Company.
10. BREACH AND TERMINATION
10.1 If the Customer:-
10.1.1 is in material breach of any term or condition of this Agreement and fails to cure the breach within 30 (thirty) days after written notice thereof; or
10.1.2 ceases to carry on business; is wound up; is placed under liquidation, whether such order be provisional or final; is placed under business rescue, whether by voluntary resolution by the Board or whether by an Order of court in accordance with Section 129 and/or 131 of the Companies Act 71 of 2008; or
10.1.3 has judgment taken against it and fails to satisfy or apply to have same set aside within seven (7) calendar days of becoming aware thereof; or
10.1.4 without the prior written consent of the Company, undergoes a change in its shareholding or members' interest so that a new person owns the majority of its voting share capital or members' interest
then the Company may cancel this Agreement with immediate effect.
10.2 The Company may, in addition to, and without prejudice to any other right it may have in law or in terms of this Agreement, to:-
10.2.1 enforce specific performance of the terms of this Agreement;
10.2.2 subject to clause 10.3, cancel this Agreement;
10.2.3 subject to the provisions of clause 9 recover such damages as it may have sustained.
10.3 The Company may only cancel this Agreement in terms of clause 10.1.1 if the breach is material and is not capable of being remedied by payment of money or, if it is capable of remedy by payment of money, if the Customer fails to make payment within fourteen (14) calendar days after final determination of the amount.
10.4 No claim may be instituted against the Company arising from the terms of this Agreement, unless dispute resolution proceedings are instituted in terms of this Agreement within one (1) year of the purported cause of action arising.
11. DOMICILIUM AND NOTICES
11.1 The Customer chooses its domicilium citandi et executandi as the address reflected as its physical address on the first page hereof.
11.2 The Company chooses its domicilium citandi et executandi as:-
Potshot Archery, 7 Sunpark Village 2, Boundry Road, Northriding, Gauteng.
Attention: Jacobus Henn
11.3 All notices, approvals, consents and other communications required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and in each instance will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth above or to such other address as specified in this Agreement by the Parties.
12. ARBITRATION AND DISPUTE RESOLUTION
12.1 The parties shall attempt to resolve any dispute, disagreement or claim arising between the parties (hereinafter referred to as "the Dispute") concerning this Agreement or the interpretation of this Agreement or its termination, by negotiation. In such event and as and when the Dispute arises, one Party may invite the other in writing to meet and to attempt to resolve the Dispute within 7 (seven) days from date of the written invitation.
12.2 Should the procedure as described in clause 12.1 above fail and the Dispute remains unresolved within 21 (twenty one) days of the date of either Party's written invitation to meet in terms of clause 12.1, then in such event the matter shall be referred to each party's respective managing directors (or other suitable senior executives) and a meeting shall take place between such persons with a view to resolving same. Such meeting must take place within 7 (seven) days after the expiry of the aforementioned 21 (twenty one) day period.
12.3 Should the procedure as described in clause 12.2 above fail and a Dispute remains unresolved, then in such event the Dispute shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator or arbitrators appointed by AFSA.
13.1 The Customer hereby irrevocably cedes, assigns and transfers, makes over unto and in favour of the Company, all the Customer's right and title and interest in and to its claims against its debtors, both present and future and from whatsoever cause arising, as security for all or any of the amounts which the Customer may now or any time in the future owe to the Company.
13.2 The Customer irrevocably and in terms hereof authorizes the Company in its absolute discretion to claim from all or any of the Customer's debtors the whole or any portion of the indebtedness of any one or more of them to give a valid receipt or discharge for such indebtedness, to take any action in its name in any court of competent jurisdiction and to proceed in execution thereunder against all or any of the said debtors to cede, transfer, negotiate, pledge or otherwise deal with all or any of the said debtors, to exchange promissory notes, cheques, agreements, documents of title or any other security held by the Customer.
13.3 The security created by the cession shall be a continuous one, notwithstanding any fluctuation in the amount of indebtedness of the Customer to the Company.
13.4 The Customer hereby undertakes on demand, to furnish the Company with such information concerning its debtors as may be reasonably required, to enable the Company to give effect to the provision of this clause.
14.1 The Company reserves the right, in its sole discretion to request reasonable security for the due performance of any of the Customer's obligations under this Agreement.
14.2 If the Company receives security, it will serve as a pledge in favour of the Company for present and past debts the Company will be entitled to retain or realize such pledges, as it deems expedient.
14.3 In the event that the Company requests reasonable security from the Customer, which security is not forthcoming within 7 (seven) days of the request, the Company shall be entitled to withdraw from the Agreement in whole or in part, without incurring any liability whatsoever.
15. CUSTOMER INFORMATION
15.1 The Customer hereby consents to the storage and use by the Company of the information provided by the Customer to the Company, for the sole purpose of establishing its credit rating.
15.2 The Company shall be entitled to disclose such information to credit control companies, banks and other institutions involved in rating credit.
15.3 The Customer agrees that the Company will not be held liable for the disclosure of any of this information to such third parties and that no further specific consent is required thereto.
14.1 This Agreement constitutes the entire Agreement between the parties with regard to the subject matter hereof.
14.2 No alteration or variation to, or consensual cancellation of this Agreement shall be of any force or effect, unless it is recorded in writing and signed by an authorized representative of the Company.
14.3 Nothing in this Agreement constitutes either party as the agent, principal, representative or partner of the other, and no party shall be entitled to hold out to any third party that the relationship between the parties is that of a partnership, joint venture or the like.
14.4 No failure or delay by a party to enforce any provision of this Agreement shall constitute a waiver or suspension of such provision or affect in any way a party's right to require performance of any such provision at any time in the future, nor shall the waiver of any right arising from any subsequent breach nullify the effectiveness of the provision itself.
14.5 In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining provisions, which shall remain of full force and effect. If any invalid term is capable of amendment to render it valid the parties agree to negotiate in good faith an amendment to remove the invalidity.
14.6 The Customer expressly waives all rights to claim prescription under the relevant provisions of the Prescription Act, 1969 as amended.
14.7 This Agreement will be governed in accordance with the laws of the Republic of South Africa.